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B-165771, APR. 28, 1969

B-165771 Apr 28, 1969
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THE SUBJECT INVITATION WAS THE FIRST STEP OF A TWO-STEP PROCUREMENT AND REQUESTED TECHNICAL PROPOSALS FOR THE FABRICATION OF COUNTING ACCELEROMETERS CONFORMING TO SPECIFICATION MIL-A-22145B/AS). THIRTEEN TECHNICAL PROPOSALS WERE RECEIVED IN RESPONSE TO STEP 1 OF THE INVITATION. THE UMC PROPOSAL WAS REJECTED ON THE BASIS THAT IT OFFERED AN UNACCEPTABLE ENGINEERING APPROACH. THREE OFFERORS WERE DETERMINED TO HAVE SUBMITTED ACCEPTABLE PROPOSALS AND ACCORDINGLY RECEIVED THE SECOND STEP INVITATION. AWARD WAS MADE TO SYSTRON-DONNER CORPORATION AS THE LOWEST RESPONSIVE. BEFORE BIDS WERE OPENED ON THE SECOND STEP INVITATION. A DEBRIEFING CONFERENCE WAS CONDUCTED FOR YOUR BENEFIT BY NAVAIR PERSONNEL IN ORDER TO EXPLAIN WHY YOUR TECHNICAL PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE.

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B-165771, APR. 28, 1969

TO LINCOLN AND STEWART:

BY LETTER DATED APRIL 8, 1969, YOU FORWARDED CORRESPONDENCE FROM YOUR CLIENT, UMC ELECTRONICS CO., RELATIVE TO THAT FIRM'S PROTEST AGAINST THE REJECTION OF ITS PROPOSAL UNDER STEP 1 OF INVITATION FOR BIDS NO. N00019- 68-B-0264, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR).

THE SUBJECT INVITATION WAS THE FIRST STEP OF A TWO-STEP PROCUREMENT AND REQUESTED TECHNICAL PROPOSALS FOR THE FABRICATION OF COUNTING ACCELEROMETERS CONFORMING TO SPECIFICATION MIL-A-22145B/AS), AS AMENDED BY AMENDMENT 1 DATED DECEMBER 15, 1967. THIRTEEN TECHNICAL PROPOSALS WERE RECEIVED IN RESPONSE TO STEP 1 OF THE INVITATION. AFTER EVALUATION BY NAVAIR TECHNICAL PERSONNEL, THE UMC PROPOSAL WAS REJECTED ON THE BASIS THAT IT OFFERED AN UNACCEPTABLE ENGINEERING APPROACH.

THEREAFTER, THREE OFFERORS WERE DETERMINED TO HAVE SUBMITTED ACCEPTABLE PROPOSALS AND ACCORDINGLY RECEIVED THE SECOND STEP INVITATION. AFTER A DETERMINATION THAT AWARD COULD NOT BE DELAYED PENDING RESOLUTION OF THE PROTEST BECAUSE OF ITS URGENCY, AND APPROPRIATE NOTIFICATION TO THAT EFFECT TO OUR OFFICE PURSUANT TO ASPR 2-407.9 (B) (2), AWARD WAS MADE TO SYSTRON-DONNER CORPORATION AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER ON JANUARY 13, 1969.

ON DECEMBER 3, 1968, BEFORE BIDS WERE OPENED ON THE SECOND STEP INVITATION, A DEBRIEFING CONFERENCE WAS CONDUCTED FOR YOUR BENEFIT BY NAVAIR PERSONNEL IN ORDER TO EXPLAIN WHY YOUR TECHNICAL PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE.

THE REPORT SUBMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY REVEALS THAT UMC SUBMITTED THREE ALTERNATE PROPOSALS AND THAT ALL THREE ALTERNATES WERE DETERMINED TO BE UNACCEPTABLE. AFTER REVIEWING THE TECHNICAL REASONS ADVANCED BY THE NAVY FOR REJECTION, UMC ADMITTED IN A LETTER TO YOU DATED APRIL 3, 1969, THAT THE FIRST TWO ALTERNATES WERE PROPERLY FOR REJECTION, BUT MAINTAINED THAT NOT ONLY WAS NO ADMISSION MADE AT THE DEBRIEFING THAT THE THIRD ALTERNATE WAS NOT ACCEPTABLE, AS CONTENDED IN THE NAVY REPORT, BUT THAT THE TECHNICAL REASONS ADVANCED BY THE NAVY AS EVIDENCE OF THE UNACCEPTABILITY OF THE THIRD ALTERNATE WERE ERRONEOUS.

SPECIFICALLY, THE NAVY REPORT STATES AS THE REASON FOR THE REJECTION OF THE THIRD ALTERNATE PROPOSAL, THE FAILURE OF THAT PROPOSAL TO COMPLY WITH THE REQUIREMENTS OF PARAGRAPHS 3.3.4, INTERCHANGEABILITY; 3.3.3.1, CABLES AND CONNECTORS; 3.4.1.1, WIRING; AND 3.3.6, INTERFACE REQUIREMENTS OF THE APPLICABLE SPECIFICATION. UMC'S APRIL 3 LETTER MAINTAINS THAT ALL FOUR OF THE ABOVE-MENTIONED SPECIFICATION REQUIREMENTS WERE IN FACT MET BY ITS THIRD ALTERNATE PROPOSAL AND THAT IT THEREFORE SHOULD HAVE BEEN PERMITTED TO PARTICIPATE IN STEP TWO OF THE INVITATION.

THE DETERMINATION AS TO WHETHER A PROPOSAL IS ACCEPTABLE UNDER THE TECHNICAL REQUIREMENTS STATED BY THE GOVERNMENT IS PRIMARILY A FUNCTION OF THE PROCURING AGENCY AND IS NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS SUCH DETERMINATION IS CLEARLY SHOWN TO BE ARBITRARY, CAPRICIOUS, OR MADE IN BAD FAITH. SEE 40 COMP. GEN. 5; B-165457, MARCH 18, 1969. BECAUSE OUR OFFICE LACKS TECHNICAL EXPERTISE AND BECAUSE THE DETERMINATION AS TO WHETHER OR NOT SPECIFICATION REQUIREMENTS HAVE BEEN COMPLIED WITH PROPERLY IS WITHIN THE RANGE OF DISCRETION VESTED IN THE PROCUREMENT AGENCIES, WE WILL ORDINARILY NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING AGENCY IN THAT AREA. ACCORDINGLY, WHEN THERE IS A DISPUTE BETWEEN AN OFFEROR AND THE ADMINISTRATIVE AGENCY AS TO THE ACCEPTABILITY OF A TECHNICAL PROPOSAL, WE MUST ACCEPT THE ADMINISTRATIVE POSITION UNLESS THE ADMINISTRATIVE POSITION IS CLEARLY ERRONEOUS. WHILE UMC DISAGREES WITH THE TECHNICAL REASONS ADVANCED FOR REJECTION OF ITS THIRD ALTERNATE PROPOSAL, WE CANNOT CONCLUDE ON THE BASIS OF THE PRESENT RECORD THAT SUCH REASONS ARE SO CLEARLY ERRONEOUS AS TO WARRANT ADVERSE ACTION BY OUR OFFICE.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, THE PROTEST OF UMC ELECTRONICS CO. MUST BE DENIED.

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